Do Biden鈥檚 preemptive pardons offer a safety valve or set bad precedent?
In a sweeping act of presidential power in his final hours in office, President Joe Biden issued preemptive pardons to over a dozen people who faced the threat of legal investigation by the incoming Trump administration.
The recipients ranged from members of the Jan. 6 committee and their staff to Capitol police who testified about the events of the Capitol riot. Mr. Biden also singled out Gen. Mark Milley, who served under President Donald Trump, and Dr. Anthony Fauci, who managed the COVID-19 pandemic under both Presidents Trump and Biden. The outgoing president also pardoned five members of his own family.
While technically within the bounds of the presidential pardon power, no president has issued so many late pardons to individuals yet to be convicted of 鈥� or even investigated for 鈥� committing crimes. Supporters of the preemptive action counter that an incoming president never threatened legal action against his political enemies the way newly inaugurated President Donald Trump has.
Why We Wrote This
President Joe Biden drew criticism for pardoning his son Hunter to protect him from political retribution. Now, Mr. Biden鈥檚 eleventh-hour preemptive pardons for his family and Trump critics are raising further questions.
In his inaugural speech on Monday, President Trump reiterated his view that his four criminal indictments 鈥� and convictions on one set of the charges 鈥� resulted from persecution by the departing president rather than his own actions.
鈥淭he scales of justice will be rebalanced,鈥� President Trump said. 鈥淭he vicious, violent, and unfair weaponization of the Justice Department and our government will end.鈥�
Regardless, what is unquestionable is that Mr. Biden has pushed the presidential pardon power into new ground. While some pardon recipients expressed gratitude, others worried about the precedent it could set for Mr. Trump and future presidents, who already enjoy broad immunity from criminal prosecution for official acts.
Little precedent for presidential preemptive pardons
Article II of the Constitution gives the president the power to 鈥済rant Reprieves and Pardons for Offenses against the United States.鈥� While previous presidents have issued pardons to people yet to be charged with crimes, there is little precedent for the preemptive pardons Mr. Biden issued during his final 24 hours in the White House.
It鈥檚 not his first run at preemptive pardons. Last month, Mr. Biden pardoned his son Hunter before his sentencing for federal gun and tax fraud felonies. The amnesty covered any crimes he may have committed over the past decade.
On Monday morning, in the final hours of his term, President Biden also issued preemptive pardons to other individuals who Mr. Trump and his supporters often criticized.
General Milley and Dr. Fauci received full and unconditional pardons 鈥渇or any offenses鈥� they may have committed over the past decade. The members of the Jan. 6 committee and their staff, as well as police officers who testified to the committee, received full pardons for any offenses 鈥渁rising from or in any matter related to鈥� the committee鈥檚 work investigating the Capitol attack. Five members of Mr. Biden鈥檚 immediate family, meanwhile, received full pardons for any nonviolent offenses they may have committed over the past decade.
Not everyone supported these actions. Sen. Adam Schiff of California, who served on the Jan. 6 committee when he was in Congress, said last month that he didn鈥檛 want a preemptive pardon. 鈥淚t鈥檚 unnecessary,鈥� he聽told ABC News. Giving 鈥減reemptive blanket pardons on the way out of an administration,鈥� he added, 鈥渋s a precedent we don鈥檛 want to set.鈥� Mr. Trump has previously threatened to prosecute Senator Schiff and other members of the committee, including former Republican Rep. Liz Cheney, whom Mr. Biden also pardoned.
But other pardon recipients voiced their appreciation.
General Milley 鈥� the nation鈥檚 highest-ranking military official during the last year of Mr. Trump鈥檚 first term, who became a prominent critic of the reelected president 鈥� said in聽a statement that he was 鈥渄eeply grateful鈥� for the pardon. He said he was thankful to be spared from 鈥渇ighting those who unjustly might seek retribution for perceived slights,鈥� adding that he doesn鈥檛 want to put 鈥渕y family, my friends, and those with whom I served through the resulting distraction, expense, and anxiety.鈥�
Dr. Fauci, whose handling of the country鈥檚 pandemic response was condemned by critics, echoed those sentiments. Earlier Monday, he聽told CNN he is 鈥渧ery appreciative鈥� of the preemptive pardon. 鈥淲e did nothing wrong. But the baseless accusations and threats are real for me and my family,鈥� he added.
Beginning in 2021, Mr. Trump began making public comments that General Milley should be tried for treason. Several prominent Republicans have said that Dr. Fauci should be prosecuted for his handling of the nation鈥檚 pandemic response.
In the long run, however, Mr. Biden鈥檚 preemptive pardons could cast more suspicion on the beneficiaries than it relieves. In a social media聽post this morning, Republican Sen. Rand Paul said the pardon of Dr. Fauci 鈥渨ill only serve as an accelerant to pierce the veil of deception鈥� around the pandemic. 鈥淚 will not rest until the entire truth of the coverup is exposed,鈥� he added.
鈥淪trangest year in the history of the pardon power鈥�
Mr. Biden is not the first president to issue pardons to people yet to be convicted of crimes. President Gerald Ford pardoned Richard Nixon before he could be tried in the wake of Watergate. President Jimmy Carter issued blanket preemptive pardons to those accused of avoiding the draft in the Vietnam War. President Andrew Johnson issued blanket pardons to former Confederate soldiers after the Civil War.
But the timing and the scope of these pardons 鈥� including the Hunter Biden pardon 鈥� worry some experts.
鈥淭his may be the strangest year in the history of the pardon power,鈥� says Mark Osler, a professor at the University of St. Thomas School of Law who studies sentencing and clemency.
The Biden pardons 鈥渋nvolve people who not only haven鈥檛 been charged but seem highly unlikely to be convicted of anything,鈥� he adds. 鈥淗e鈥檚 ignored the hundreds of others who had good cases for clemency, who followed the rules, who submitted a petition, and got nothing.鈥�
Mr. Biden also issued several more traditional pardons before he left the White House. Perhaps most notable was his extending clemency toward Native American activist Leonard Peltier, who was imprisoned for 50 years despite serious doubts over his conviction in the 1970s. Mr. Peltier will be allowed to serve the remainder of his sentence at home.
One person who has voiced concerns about a president issuing eleventh-hour preemptive pardons is Mr. Biden himself.
In December 2020, amid reports that then-President Trump was considering issuing preemptive pardons, including to his own family members, Mr. Biden聽told CNN that preemptive pardons 鈥渃oncer[n] me, in terms of what kind of precedent it sets and how the rest of the world looks at us as a nation of laws and justice.鈥�
He added: 鈥淵ou鈥檙e not going to see, in our administration, that kind of approach to pardons.鈥�
